The Huffington Post recently published a blog article about the benefits and pitfalls of semi-separation from a practical perspective. While the article considered the practicalities of the way in which a couple would "semi-separate" it does not discuss the legal ramifications that a semi-separation may have on parties, as opposed to separating on a final basis.
What is semi-separation?
In Australia, when couples decide to end their relationship but continue residing together, it is called "separated under one roof" whilst it is known as "semi-separation" in other parts of the world. For a lot of people this is a choice made out of convenience, for the benefit of the children or concern relating to finances.
Many people are not aware that living under the same roof makes it more difficult to demonstrate that you have separated. From the Court's perspective, if the marriage of the parties has not "irretrievably broken down" and met the three criteria of separation, then the parties marriage may still be considered valid.
What does the Court look for when they are assessing whether I have separated from my spouse?
Every marital relationship is different, however as a general rule the Court looks for the following things:
- Whether either of you have any intention to resume the relationship;
- Whether you both act as though the relationship has finished; and
- Whether either or both of you have clearly communicated to the other that the relationship has finished.
How do I prove to the Court that my marriage has broken down irretrievably?
In order to establish that a separation has occurred you will need to show the Family Court that your marriage "has broken down irretrievably". To determine this you need to prove to the Court that you have been separated for a continuous period of at least1 year. 1 year and 1 day after you separate, you are able to file an application for divorce in the Family Court. The 1 year period commences on the date that one or both parties communicate their intention to separate.
If the court finds that it is likely that there will be a resumption of cohabitation by the parties, divorce may not be granted.
Will living separately under one roof prevent me from getting a divorce?
While living separately under the same roof has its legal disadvantages, it does not prevent you from getting a divorce, you simply must go to further lengths to show to the Court that the separation is valid.
The Court requires that one or both parties provide an Affidavit which addresses at least the following:
- Why you are still living together;
- Whether or not your finances have been separated; and
- Whether your family/friends have been informed of the separation.
You may also need to file a witness Affidavit on behalf of a third party for example a friend or neighbour, confirming the evidence surrounding your separation.
If you are currently living in a "semi-separation" lifestyle, are separated under one roof or are considering separation from your spouse you should seek advice from a specialist Family Lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
